REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT dated as of August 13, 1999 (as amended,
supplemented or modified from time to time, the "Registration Rights Agreement")
between OPTICARE HEALTH SYSTEMS, INC., a Delaware corporation f/k/a Saratoga
Resources, Inc. (the "Company"), and BANK AUSTRIA CREDITANSTALT CORPORATE
FINANCE, INC. having offices at 0 Xxxxxxxxx Xxxxx, Xxxxxxxxx, XX 00000
("BACCFI").
W I T N E S S E T H:
WHEREAS, in connection with a certain Amended and Restated Loan and
Security Agreement, dated August 13, 1999 (the "Loan Agreement") among the
Company, the lenders named therein, Bank Austria AG as the LC Issuer, and BACCFI
as the Agent, the Company has agreed to execute and deliver a Warrant Agreement
as of the date hereof (as the same may be amended, supplemented or otherwise
modified from time to time, the "Warrant Agreement") in favor of BACCFI,
pursuant to which the Company will issue to BACCFI or an Affiliate certain stock
purchase warrants (the "Warrants") exercisable for up to 100,000 shares of
Common Stock or Series A Preferred Stock, par value $0.001 per share (the
"Series A Preferred Stock") (subject to adjustment pursuant to the Warrant
Agreement); and
WHEREAS, the Company and BACCFI are entering into a Exchange and
Subscription Agreement as of the date hereof (as the same may be amended,
supplemented or otherwise modified from time to time, the "Subscription
Agreement") pursuant to which BACCFI will purchase from the Company 418,803
shares of the Company's Series A Convertible Preferred Stock; and
WHEREAS, in order to induce BACCFI to enter into the Loan Agreement and the
Subscription Agreement, the Company has agreed to provide BACCFI with certain
exchange rights and rights in respect of the registration of the Company's
equity securities to be issued to BACCFI pursuant to the Warrant Agreement and
the Subscription Agreement; and
NOW, THEREFORE, in consideration of the premises, the terms and conditions
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
Section 1. Definitions.
"AFFILIATE" of any Person (which shall include an individual, a
partnership, a limited liability company, a corporation, a trust, a joint
venture, an incorporated organization or a government or any department or
agency thereof) means any other Person directly or indirectly controlling,
controlled by or under direct or indirect common control with such Person.
For purposes of this definition, a Person shall be deemed to control
another Person if such first Person possesses directly or indirectly the
power to (i) vote 10% or more of the securities having ordinary voting
power for the selection of directors of such Person or (ii)
direct, or cause the direction of, the management and policies of the
second Person, whether through the ownership of voting securities, by
contract or otherwise. In addition, as to BACCFI, "Affiliate" shall include
any partnership a majority of the partners of which are officers,
directors, employees or Affiliates of Purchaser, and as to the Company,
"Affiliate" shall not include BACCFI or any Affiliate of BACCFI which is a
holder of any Securities of the Company.
"COMMON STOCK" shall mean the Common Stock, $0.001 par value per share, of
the Company.
"COMMISSION" shall mean the Securities and Exchange Commission and any
successor federal agency having similar powers.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder.
"HOLDERS" shall mean BACCFI, and all other Persons holding Registrable
Securities so long as BACCFI or such other Person holds Registrable
Securities, except that none of the Company or any Affiliate of the
Company will at any time be a Holder. Unless otherwise provided in this
Agreement, in each instance that a Holder is required to request or consent
to or otherwise approve an action, such Holder will be deemed to have
requested or consented to or otherwise approved such action if the Holders
of a majority-in-interest of the Registrable Securities so request, consent
or otherwise approve.
"NON-ATTRIBUTABLE STOCK" shall have the meaning given such term in the
Warrant Agreement.
"NON-PUBLIC WARRANT SHARES" shall mean Warrant Shares that have not been
sold to the public.
"PERSON" this term shall be interpreted broadly to include any individual,
sole proprietorship, partnership, joint venture, trust, unincorporated
organization, association, corporation, company, institution, entity,
party, or government (whether national, federal, state, county, city,
municipal, or otherwise, including, without limitation, any
instrumentality, division, agency, body, or department of any of the
foregoing).
"REGISTER," "REGISTERED," AND "REGISTRATION" refer to a registration
effected by preparing and filing a registration statement in compliance
with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"REGISTRABLE SECURITIES" shall mean (a) the Warrants, (b) the Non-Public
Warrant Shares, (c) shares of Series A Preferred Stock held by BACCFI, and
(d) shares of Common Stock issued or issuable upon conversion of the Series
A Preferred Stock.
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"SECURITIES ACT" shall mean the Securities Act of 1933, as amended, and the
rules and regulations thereunder.
"SERIES A PREFERRED STOCK" shall mean the Series A Convertible Preferred
Stock $0.001 par value, of the Company having the rights, restrictions,
privileges and preferences set forth in the Company's Certificate of
Designation of terms of Series A Convertible Preferred Stock.
"SUBSCRIPTION AGREEMENT" shall mean the Exchange and Subscription
Agreement, dated as of August 13, 1999, between the Company and BACCFI (as
such agreement may be amended, restated, supplemented or otherwise modified
from time to time).
"WARRANT AGREEMENT" shall mean the Warrant Agreement, dated as of August
13, 1999, between the Company and BACCFI (as such agreement may be amended,
restated, supplemented or otherwise modified from time to time).
"WARRANT SHARES" shall have the meaning given such term in the Warrant
Agreement.
"WARRANTS" shall have the meaning given such term in the Warrant Agreement.
Section 2. Exchange Rights. If the Company takes any action to cause the
Common Stock currently or previously held by or currently issuable without
restriction to BACCFI and its Affiliates (other than shares of Non-Attributable
Stock) to exceed 4.99% of the aggregate number of issued and outstanding shares
of Common Stock, then the Company shall use its best efforts, as soon as
practicable and in any event within 3 business days after receipt of written
notice from BACCFI exercising its exchange rights hereunder, to exchange such
portion of Common Stock for Series A Preferred Stock as will reduce the shares
of Common Stock currently or previously held by or currently issuable without
registration to the BACCFI and its Affiliates (not including "Non-Attributable
Stock") to 4.99% of the aggregate number of issued and outstanding shares of
Common Stock.
Section 3. Registration Rights.
(a) If, at any time after the date hereof, the Company proposes to register
any of its securities under the Securities Act (except pursuant to a
registration statement filed on Form S-8 or Form S-4 or such other form as shall
be prescribed under the Act for the same purposes), it will at each such time
give written notice (which notice shall state the intended method of disposition
thereof by the prospective sellers) to all holders of outstanding Registrable
Securities of its intention to do so and the proposed minimum offering price per
shares of such securities and upon the written request of any holder thereof
given within 10 days after the Company's giving of such notice, the Company,
will use its reasonable best efforts to effect the registration of the
Registrable Securities which it shall have been so requested to register by
including the same in such registration statement all to the extent required to
permit the sale or other disposition thereof in accordance with the intended
method of sale or other disposition given in each such request. If the
registration of which the Company gives notice pursuant to this subsection 3(c)
is for an
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underwritten public offering, only Registrable Securities which are to be
included in the underwriting may be included in such registration, and the
Company shall have the right to designate the managing underwriter(s) in any
such underwritten public offering; provided that (i) the Company shall use its
reasonable best efforts to cause the managing underwriter(s) to include the
Registrable Securities requested to be included in the registration in the
underwriting; (ii) if the managing underwriter(s) advises the holders of the
Registrable Securities in writing that the total amount of securities which they
and the Company intend to include in such offering is sufficiently large to
materially and adversely affect the success of such offering, the amount of
securities to be offered for the accounts of all holders of Registrable
Securities shall be reduced pro rata (based upon the amount of securities each
such Person sought to include in the offering) to the extent necessary to reduce
the total amount of securities to be included in the offering to the amount
recommended by such managing underwriter(s) (which amount may be zero, if so
recommended by such managing underwriter(s). Any registration statement filed
pursuant to this subsection 3(c) may be withdrawn at any time at the discretion
of the Company.
(b) If a registration under subsection 3(c) shall be in connection with an
underwritten public offering, each holder of Registrable Securities shall be
deemed to have agreed by acquisition of such Registrable Securities not to
effect any sale or distribution, including any sale pursuant to Rule 144 or Rule
144A, of any Registrable Securities, and to use such holder's reasonable best
efforts not to effect any such sale or distribution of any other equity security
of the Company or of any security convertible into or exchangeable or
exercisable for any equity security of the Company (other than as part of such
underwritten public offering) within seven days before or 90 days after the
effective date of such registration statement, provided that the Company hereby
also so agrees and agrees to use its reasonable efforts to cause each other
selling shareholder in such offering, so to agree.
(c) (i) As a condition to the inclusion of a holder's Registrable
Securities in any registration statement, each such holder of Registrable
Securities requesting registration thereof will furnish to the Company such
information with respect to such holder as is required to be disclosed in
the registration statement (and the prospectus included therein) by the
applicable rules, regulations and guidelines of the Commission and enter
into a customary agreement requested by the Company regarding compliance
with Rule 10b-18 promulgated under the Exchange Act and agreeing that such
holder will, upon receipt of a notice from the Company pursuant to
subsection 3(d)(iv) below, refrain from selling Warrants or Warrant Shares
pursuant to the Registration Statement until the Company has filed and
furnished to the holder an amended or supplemented prospectus as
contemplated in subsection 3(d)(iv), but not longer than ninety (90) days
after such notice. Failure of a holder to furnish such information or
agreement shall not affect the obligation of the Company under this Section
3 to the remaining holders who furnish such information.
(ii) Each Holder of Registrable Securities requesting registration
thereof agrees that such Holder will register shares of Common Stock to the
greatest extent permitted by applicable law and to the extent that legal
restrictions would not make the registration of Common Stock
disadvantageous to such Holder.
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(d) If and whenever the Company is required under this Section 3 to use its
reasonable best efforts to effect the registration of Registrable Securities
under the Securities Act, the Company shall:
(i) as expeditiously as possible prepare and file with the Commmission
a registration statement on the appropriate form with respect to such
Registrable Securities and use its reasonable best efforts to cause such
registration statement to become effective as soon as practicable after
such filing;
(ii) as expeditiously as possible, prepare and file with the
Commission such amendments and supplements (including post-effective
amendments and supplements) to the registration statement covering such
Registrable Securities and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective and usable
for resale for a period necessary to complete the distribution of such
securities, but in no event in excess of 12 months plus any period during
which the holders of Registrable Securities are obligated to refrain from
selling because the Company is required to amend or supplement the
prospectus as contemplated under subsection 3(d)(iv), and to comply with
the provisions of the Securities Act with respect to the disposition of all
Registrable Securities covered by such registration statement during such
period in accordance with the intended method of disposition of the sellers
set forth therein;
(iii) as expeditiously as possible, furnish to each seller of such
Registrable Securities registered, or to be registered under the Securities
Act, and to each underwriter, if any, of such Registrable Securities such
number of copies of a prospectus and preliminary prospectus in conformity
with the requirements of the Securities Act, and such other documents as
such seller or underwriter may reasonably request in order to facilitate
the public sale or other disposition of such Registrable Securities;
(iv) as expeditiously as possible, notify each seller of such
Registrable Securities if, at any time when a prospectus relating to such
Registrable Securities, is required to be delivered under the Securities
Act, any event shall have occurred as a result of which the prospectus then
in use with respect to such Registrable Securities would include an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading or for any other reason it shall be necessary to amend or
supplement such prospectus in order to comply with the Securities Act and
prepare and furnish to all sellers as promptly as possible, and in any
event within ninety (90) days of such notice, a reasonable number of
copies of a supplement to or an amendment of such prospectus which will
correct such statement or omission or effect such compliance;
(v) as expeditiously as possible, use its reasonble best efforts to
register or qualify, or obtain exemptions from such registration or
qualification of, such Registrable Securities under such other securities
or blue sky laws of such jurisdictions as such seller shall reasonably
request and do any and all other acts and things which may be reasonably
necessary to enable such seller to consummate the public sale or other
disposition in each
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such jurisdiction of the Registrable Securities owned by such seller and
included in such registration statement, provided that the Company shall
not be required to consent to the general service of process or to qualify
to do business in any jurisdiction where it is not then qualified;
(vi) use its reasonable best efforts to keep the holders of such
Registrable Securities informed of the Company's best estimate of the
earliest date on which such registration statement or any post-effective
amendment or supplement thereto will become effective and will promptly
notify such holders and the managing underwriters, if any, participating in
the distribution pursuant to such registration statement of the following:
(A) when such registration statement or any post-effective amendment or
supplement thereto becomes effective or is approved; (B) of the issuance by
any competent authority of any stop order suspending the effectiveness or
qualification of such registration statement or the prospectus then in use
or the initiation or threat of any proceeding for that purpose; and (C) of
the suspension of the qualification of any Registrable Securities included
in such registration statement for sale in any jurisdiction;
(vii) make available to its security holders, as soon as practicable,
an earnings statement covering a period of at least twelve months which
satisfies the provisions of Section 11(a) of the Securities Act and Rule
158 thereunder;
(viii) cooperate with the sellers of such Registrable Securities and
the underwriters, if any, of such Registrable Securities; give each seller
of such Registrable Securities, and the underwriters, if any, of such
Registrable Securities and their respective counsel and accountants, such
access to its books and records and such opportunities to discuss the
business of the Company with its officers and independent public
accountants as shall be necessary to enable them to conduct a reasonable
investigation within the meaning of the Securities Act and, in the event
that Registrable Securities are to be sold in an underwritten offering,
enter into an underwriting agreement containing customary representations
and warranties, covenants, conditions and indemnification provisions,
including without limitation the furnishing to the underwriters of a
customary opinion of independent counsel to the Company;
(ix) provide a CUSIP number for all Registrable Securities not later
than the effective date of the registration statement;
(x) as to all registrations under subsection 3(a), pay all costs and
expenses incident to the performance and compliance by the Company of this
Section 3, including without limitation (A) all registration and filing
fees; (B) all printing expenses; (C) all fees and disbursements of counsel
and independent public accountants for the Company; (D) all blue sky fees
and expenses (including fees and expenses of counsel in connection with
blue sky surveys); (E) all transfer taxes; (F) the entire expense of any
special audits required by the rules and regulations of the Commission; (G)
the cost of distributing prospectuses in preliminary and final form as well
as any supplements thereto; and
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(e)(i) The Company will indemnify and hold harmless each seller of
Registrable Securities, each director, officer, employee and agent of each
seller, and each other person, if any, who controls such seller within the
meaning of the Securities Act or the Exchange Act from and against any and
all losses, claims, damages, liabilities and legal and other expenses
(including costs of investigation) caused by any untrue statement or
alleged untrue statement of a material fact contained in any registration
statement under which such Registrable Securities were registered under the
Securities Act, any prospectus or preliminary prospectus contained therein
or any amendment or supplement thereto, or caused by any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages, liabilities or expenses are caused
by any such untrue statement or omission or alleged untrue statement or
omission based upon information relating to such seller and furnished to
the Company in writing by such seller expressly for use therein, and
provided that the Company will not be liable to any Person who participates
as an underwriter in the offering or sale of Registrable Securities or any
other Person, if any, who controls such underwriter within the meaning of
the Securities Act under the indemnity agreement in this subsection 3(e)
with respect to any preliminary prospectus or the final prospectus or the
final prospectus as amended or supplemented, as the case may be, to the
extent that any such loss, claim, damage or liability of such underwriter
or controlling Person results from the sale by such underwriter of
Registrable Securities to a Person to whom there was not sent or given, at
or prior to the written confirmation of such sale, a copy of the final
prospectus or of the final prospectus as then amended or supplemented,
whichever is most recent, if the Company has previously furnished copies
thereof to such underwriter, or from a sale to a Person in a state where
the offering has not been registered or qualified, if the Company has
notified the seller and any underwriter involved in such sale of the states
where the offering has been registered or qualified.
(ii) It shall be a condition to the obligation of the Company to
effect a registration of Registrable Securities under the Securities Act
pursuant hereto that (X) each seller, severally and not jointly, indemnify
and hold harmless the Company and each person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act to the
same extent as the indemnity from the Company in the foregoing paragraph,
but only with reference to any breach by such seller of any agreement
between such seller, and the Company with respect to the offering and with
reference to information relating to such seller furnished to the Company
in writing by such seller expressly for use in the registration statement,
any prospectus or preliminary prospectus contained therein or any amendment
or supplement thereto and (Y) each seller, in the event that Registrable
Securities are to be sold in an underwritten offering, enters into an
underwriting agreement containing customary representations and warranties,
covenants, conditions and indemnification provisions.
(iii) In case any claim shall be made or any proceeding (including any
governmental investigation) shall be instituted involving any indemnified
party in respect of which indemnity may be sought pursuant to this
subsection 3(e), such indemnified party
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shall promptly notify the indemnifying party in writing of the same,
provided that failure to notify the indemnifying party shall not relieve it
from any liability it may have to an indemnified party otherwise than under
this subsection 3(e). The indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party in such proceeding and
shall pay the fees and disbursements of such counsel. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and disbursements of such counsel shall be at the
expense of such indemnified party unless (A) the indemnifying party shall
have failed to retain counsel for the indemnified party as aforesaid, (B)
the indemnifying party and such indemnified party shall have mutually
agreed to the retention of such counsel or (C) representation of such
indemnified party by the counsel retained by the indemnifying party would,
in the reasonable opinion of the indemnified party, be inappropriate due to
actual or potential differing interests between such indemnified party and
any other party represented by such counsel in such proceeding, provided
that the Company shall not be liable for the fees and disbursements of more
than one additional counsel for all indemnified parties. The indemnifying
party shall not be liable for any settlement of any proceeding effected
without its written consent but if settled with such consent or if there be
a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment.
(f) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in subsection 3(f) is
due in accordance with its terms but is for any reason held by a court to be
unavailable on grounds of policy or otherwise, the Company or the applicable
sellers, as the case may be, shall contribute to the aggregate losses, claims,
damages and liabilities incurred (including legal or other expenses reasonably
incurred in connection with the investigating or defending of same) by the other
and for which such indemnification was sought. In determining the amount of
contribution to which the respective parties are entitled, there shall be
considered the relative benefits received by each party from the offering of the
securities included in the registration statement (taking into account the
portion of the proceeds of the offering realized by each), the parties' relative
knowledge and access to information concerning the matter with respect to which
the claim was asserted, the opportunity to correct and prevent any statement or
omission, and any other equitable considerations appropriate in the
circumstances; provided, however, that (i) in no case shall any seller of
Registrable Securities be required to contribute any amount in excess of the
total public offering price of the Registrable Securities sold by him and (ii)
no person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of this
subsection 3(f), each person who controls any seller of Registrable Securities
or the Company shall have the same rights to contribution as such seller or the
Company. Any party entitled to contribution shall, promptly after receipt of
notice of commencement of any action, suit or proceeding against such party in
respect of which a claim for contribution may be made against the Company or the
seller of Registrable Securities under this subsection 3(h), notify the Company
or such seller, as the case may be, but the omission to so notify the Company or
such seller, as the case may be, shall not relieve it from any other obligation
it may have hereunder or otherwise.
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Section 4. Available Information. The Company shall take such reasonable
action and file such information, documents and reports as shall be required by
the Commission as a condition to the availability of Rule 144 and Rule 144A
promulgated under the Securities Act, or any successor provisions.
Section 5. Amendments and Waivers. Any provision of this Registration
Rights Agreement may be amended, supplemented, waived, discharged or terminated
by a written instrument signed by the Company and the Holders of not less than a
majority of the aggregate outstanding Registrable Securities, voting as a single
group.
Section 6. Specific Performance. The parties agree that irreparable damage
will result in the event that the obligations of the Company under this
Registration Rights Agreement are not specifically enforced, and that any
damages available at law for a breach of any such obligations would be
inadequate. Therefore, the Holders of the Registrable Securities shall have the
right to specific performance by the Company of the provisions of this
Registration Rights Agreement, and appropriate injunctive relief may be applied
for and granted in connection therewith. The Company hereby irrevocably waives,
to the extent that it may do so under applicable law, any defense based on the
adequacy of a remedy at law which may be asserted as a bar to the remedy of
specific performance in any action brought against the Company for specific
performance of this Registration Rights Agreement by the Holders of Registrable
Securities. Such remedies and all other remedies provided for in this
Registration Rights Agreement shall, however, be cumulative and not exclusive
and shall be in addition to any other remedies which may be available under this
Registration Rights Agreement.
Section 7. Notices.
(a) Any notice or demand to be given or made by the Holders of Registrable
Securities to or on the Company pursuant to this Registration Rights Agreement
shall be sufficiently given or made if sent by registered mail, return receipt
requested, postage prepaid, addressed to the Company at 00 Xxxxxxxxx Xxxxxx,
Xxxxxxxxx, XX 00000, Attn: Chief Financial Officer.
(b) Any notice to be given by the Company to the Holders of Registrable
Securities shall be sufficiently given or made if sent by registered mail,
return receipt requested, postage prepaid, addressed to such holder as such
Holder's name and address shall appear on the Warrant Register or the Common
Stock or Series A Preferred Stock registry of the Company, as the case may be.
Section 8. Binding Effect. This Registration Rights Agreement shall be
binding upon and inure to the sole and exclusive benefit of the Company, its
successors and assigns, and the registered Holders from time to time of the
Registrable Securities.
Section 9. Continued Validity. A Holder of Registrable Securities shall
continue to be entitled with respect to such Registrable Securities to all
rights and subject to all obligations to
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which it would have been entitled or subject as a Holder of Registrable
Securities under Section 2 and 3 of this Registration Rights Amendment.
Section 10. Counterparts. This Registration Rights Agreement may be
executed in one or more separate counterparts and all of said counterparts taken
together shall be deemed to constitute one and the same instrument.
Section 11. New York Law. THIS REGISTRATION RIGHTS AGREEMENT AND EACH
WARRANT CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF the parties hereto have caused this Registration Rights
Agreement to be duly executed and delivered by their proper and duly authorized
officers, as of the date and year first above written.
OPTICARE HEALTH SYSTEMS, INC.
f/k/a Saratoga Resources, Inc.
By: /s/ Xxxx X. Xxxxxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: President
Attest: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President and Chief
Financial Officer
BANK AUSTRIA CREDITANSTALT CORPORATE
FINANCE, INC.
By: /s/ Xxxxx Xxxx
---------------------------------------------
Name: Xxxxx Xxxx
---------------------------------------
Title: Vice President
---------------------------------------
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
---------------------------------------
Title: Executive Vice President
--------------------------------------
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